Citation Nr: 9828679
Decision Date: 09/25/98 Archive Date: 10/01/98
DOCKET NO. 97-04 618 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Winston-
Salem, North Carolina
THE ISSUE
Entitlement to special monthly compensation based on the need
for regular aid and attendance or on being housebound.
REPRESENTATION
Appellant represented by: Catholic War Veterans of the
U.S.A.
WITNESSES AT HEARING ON APPEAL
Appellant and his wife
ATTORNEY FOR THE BOARD
D. Schechter, Associate Counsel
INTRODUCTION
The veteran served on active duty from October 1968 to
September 1972.
The case comes to the Board of Veteransí Appeals (Board) from
the May 1997 rating decision of the Department of Veterans
Affairs (VA) Regional Office (RO) in Winston-Salem, North
Carolina, denying aid and attendance and housebound benefits.
The Board notes that the veteran was first granted service
connection for a delayed stress disorder, with a 10 percent
rating assigned, by a February 1982 RO rating decision. By a
March 1996 RO rating decision he was granted an increased
rating to 30 percent for the disorder, recharacterized as
posttraumatic stress disorder (PTSD). By a June 1996 rating
decision the RO granted a temporary total rating from March
19, 1996, through April 30, 1996, based on his period of
hospitalization for PTSD. By a July 1996 rating decision,
the RO amended the temporary total rating to include the
month of May 1996. By a February 1997 RO rating decision,
the veteranís disability rating for his PTSD was increased to
70 percent. By a second February 1997 rating decision, the
RO granted a total disability rating due to unemployability
(TDIU) as a result of his service-connected disabilities.
REMAND
Factual Background
The veteran is currently service-connected for PTSD, rated 70
percent disabling; a scar of the left cheek, rated 10 percent
disabling; residuals of a left thumb injury, rated
noncompensably disabling; residuals of a left foot injury,
rated noncompensably disabling; residuals of a mandible
fracture, rated noncompensably disabling; and a chest scar,
rated noncompensably disabling. The combined rating is 70
percent. Noted nonservice-connected disorders include an
antisocial behavior disorder; alcohol and drug abuse; a skin
condition, claimed as jungle rot; a chronic pain disorder
affecting the spine (back and neck) , the left shoulder and
left arm (with numbness in the left arm), and left lower
extremity, with degenerative disc disease and/or degenerative
joint disease; a right foot injury; gastrointestinal problems
creating eating difficulties; chronic obstructive pulmonary
disease (COPD); status post hemorrhoidectomy; and recent
urinary incontinence.
In a December 1981 letter from an outreach specialist at the
Vet Center, the specialist related the veteranís report, in
part, that he had occasional suicidal ideation and had shot
himself in the arm with a shotgun in a suicidal gesture.
A January 1982 VA psychiatric examination for compensation
purposes noted that the veteran had a long history of
substance abuse, beginning at the age of twelve, when the
veteran the veteran ďhitch hiked to Florida[,] got into
trouble with drugs and was arrested and put in jail.Ē He
reportedly stole a car at the age of 11, and following a
course of antisocial behavior as a teenager spent a year at a
reform school prior to electing to enlist in the Army in lieu
of going to jail. The veteran reported feeling that he had
been markedly changed upon coming back from Vietnam, with 32
subsequent criminal convictions, an estimated four years of
jail time, intolerance of being pushed around, and ready
anger. He also reported holding down no jobs, having gone
through three marriages, and being heavily involved in drug
and alcohol abuse. He reported a period of 2 Ĺ years
remaining sober. The veteran reported survival guilt and an
attempt to kill himself several years prior as a result of
that guilt. The examiners concluded that the veteran
probably had a true delayed stress reaction, but nonetheless
concluded that the veteran had severe impairment due to his
antisocial behavioral disturbance and alcohol and drug abuse,
and concluded that the severe impairment would be present
without his having gone to Vietnam. The examiners expressed
difficulty determining whether delayed stress reaction from
his Vietnam experiences resulted in any greater level of
dysfunction.
In October 1982 the veteran underwent three days of VA
hospitalization after a reported four weeks of increased
alcohol consumption with fighting, threatening family members
with weapons, and experiencing flashbacks of Vietnam. The
veteran had reportedly last eaten five days prior to
admission and last slept four days prior to admission. The
examiner noted that the veteranís affect was not clinically
depressed, and commented that the veteranís problem was
alcohol and had always been alcohol.
In July 1995 the veteran underwent a VA psychiatric
consultation for PTSD with depression and suicidal thoughts.
Exhibited increased symptoms of PTSD were noted to include
increased temper, flashbacks, and occasional suicidal
thoughts. The veteran reported that though he had suicidal
thoughts he would not act on them due to concerns for his
family. The veteran denied suicidal and homicidal ideation.
In another July 1995 VA outpatient treatment record, the
veteran reportedly described himself as a Ďkeg of dynamiteí
and declared that he would Ďblow his brains outí if his VA
benefits were restricted. The veteran also reported that his
temper was severe, with control difficulties and
confrontations with neighbors and passing motorists. The
examiner noted the veteranís report of a gun shot wound self-
inflicted several years prior, which the veteran denied was a
suicide attempt.
Also at that July 1995 VA outpatient treatment, the veteran
complained of difficulty with his left thumb including pain
on motion and limitation of motion due to his service-
connected thumb injury, necessitating limitation of use of
the thumb. He also complained of chronic pain in his jaw due
to his service-connected jaw fracture, with resulting
difficulty with his bite. The veteran also complained of
pain in his left foot secondary to his service-connected
injury to the foot, worse in winter, with occasional left leg
numbness.
At an August 1996 neuropsychiatric examination for
compensation purposes, the veteran reported a history of
great difficulty dealing with his emotional state since 1971.
Currently, he complained of flashbacks many times during the
day, brought on by certain sights, smells, locations, or
other situations reminding him of Vietnam. He also
complained of some nightmares, intolerance of crowds, and
difficulty getting along with people. He reported having
been married four or five times, with difficulty sustaining
relationships. He also reported being unable to work for
some time. He reported past alcohol problems, with sobriety
for the prior seven years. He also reported suicide attempts
in 1978 and 1988. He stated that in the 1988 attempt he had
arranged for several people to kill him in what was designed
to look like a robbery, but that this attempt failed when he
was robbed and stabbed several times but not killed. The
examiner noted a previously medically identified organic
component to his mental dysfunction. Objectively, the
veteran was alert and cooperative, and displayed no bizarre
motor movements or ticks. He walked with the aid of a cane.
There were no loose associations or flights of ideas. Mood
was somewhat sullen, tense, guarded, and suspicious. Affect
appeared appropriate. He had no delusions or hallucinations.
He was oriented times three, and both recent and remote
memory appeared grossly intact. Insight, judgment, and
intellectual capacity appeared adequate. The examiner
diagnosed PTSD, chronic and severe; schizo-affective
disorder; history of alcohol dependence; and dementia, mild,
etiology unknown.
In September 1996 the veteran underwent an eight-day VA
hospitalization for reported continued mood swings,
flashbacks, poor sleep, and memory dysfunction. Nursing
notes indicated that the veteranís wife reported that the
veteran did not always recall when to take his medications
and had trouble dressing himself at home. Objectively, the
veteran was notably irritable, though his thoughts were goal-
directed. He was vague as to suicidal ideation, and without
plan or intent. Memory appeared somewhat impaired. The
veteran was assessed as unable to work.
The veteran was again hospitalized for six days in October
1996 (the sixth psychiatric hospitalization that year) for
recurrent PTSD symptoms. The veteran reported that pain
secondary to hemorrhoid surgery two weeks prior to the
admission had led to flashbacks, nightmares, poor sleep, and
recurrent daily intrusive recollections of Vietnam combat.
He also reported confusion about which medication to take at
home. Current medications upon admission were noted to
include Klonopin, Mellaril, Nifedipine, Omeprazole,
Bisacodyl, and Zanax. Objectively, while the veteran was
cooperative and well-engaged, he appeared defeated by his
PTSD symptoms, with inability to suppress them. Affect was
dysphoric and mood congruent, with no evidence of psychosis.
He endorsed suicide as a possible solution absent improvement
in his situation. Systems were remarkable for occasional
wheezing, difficulty sleeping, diminished hearing,
postoperative hemorrhoidectomy pain, chronic left knee pain,
and a rash on the feet.
At an early February 1997 VA outpatient treatment, the
veteran complained of difficulty walking and of walking only
with a cane or crutches due to back pain. He reported
injuring his right foot in combat in service, with chronic
tenderness in the foot. His right foot was noted to be
chronically tender due to an old combat injury. He walked
with a limp due to his prior foot injury. The examiner
suspected that this foot injury had caused his degenerative
disc disease, which disease was verified on back X-ray. The
diagnostic assessment was prior foot injury with secondary
degenerative lumbar disease, both precluding physical labor,
and severe PTSD. In an outpatient treatment note apparently
dated in late February 1997, the veteran complained of an
inability to ambulate most of the time and only with the
assistance of his wife who had to quit work to stay home to
take care of him. He complained of an inability to drive due
to pain, due to his non-ambulatory status, due to his pain
medications, and due to his agitation. He also complained
that he was not sleeping because of his agitation. The
veteran emphasized that he did not know how much more of his
situation he could tolerate. The examiner noted that the
veteran was upset and in tears. The diagnostic assessment
was severe PTSD and non-ambulatory degenerative disc disease.
In April 1997 the veteran underwent a VA examination to
assess housebound status or need for regular aid and
attendance. He complained that he could do nothing for
himself. The examining physician had previously treated the
veteran and had previously advised the veteranís wife on
assisting him with activities of daily living. The examiner
noted that due to impairment of fine muscle movements the
veteran could feed himself most of the time, but could not
shave or dress himself. The examiner also noted that the
veteran required help getting off the toilet and getting out
of bed. The examiner noted poor lower extremity
coordination, with unsteadiness and inability to bear weight
without crutches. The examiner concluded that the veteranís
poor memory and frequent dizziness, combined with his PTSD,
inhibited his leaving his house without assistance. The
veteran reportedly only left home to go to the doctorís
office, and then only with the assistance of his wife, and
the examiner concluded that this was due to his severe PTSD,
memory impairment, dizziness, and his physical disabilities.
The examiner further concluded that the veteran might harm
himself if left unattended.
At a May 1997 VA outpatient treatment examination for
diagnosed chronic pain syndrome of unknown etiology, the
veteran was noted to walk with crutches, and to have pain,
including radiating pain, in the left lower and left upper
extremities, as well as in the spine, including the neck and
back. There was pain with any motion of the spine. The pain
was reportedly constant and was treated with well-established
home remedies including use of a TENS unit and a hot pack,
and walking.
At a June 1997 VA MRI examination for treatment purposes, the
veteran reported chronic pain in the left shoulder with
numbness in the left arm, and chronic pain in the low back,
with a tender left hip. Pain medication provided some
relief, but the pain reportedly necessitated his staying in
bed most of the time. The veteran was noted to be poorly
ambulatory with crutches. Chronic pain of the cervical and
lumbar spine was assessed.
At a November 1997 VA psychiatric outpatient treatment
examination, the veteran reported unmanageable physical
problems and ongoing severe PTSD symptoms. Physical problems
were noted to include severe, chronic pain; gastrointestinal
problems causing a decrease in appetite and making eating
difficult; and recent urinary incontinence. The veteranís
mood was low, with the veteran wishing he were dead. While
the veteran denied suicidal ideation, other recent comments
suggested such ideation. The veteranís wife was reportedly
attending to all the veteranís activities of daily living.
At a November 1997 RO personal hearing attended by both the
veteran and his wife, the veteran testified to his inability
to perform the normal tasks of daily living, including
walking. He testified that he was partially paralyzed on his
left side, and that he had lost control of his bladder and
therefore used a catheter. He added that he could not dress
himself or put on his shoes. He testified that he was in
continuous pain in his neck and back, and that he took
medications including high daily doses of Morphine. He added
that his arms intermittently went numb, so that he required
his wifeís assistance even to wipe himself. At the hearing
his wife confirmed the veteranís statements, to the effect
that she had to assist him in virtually all activities of
daily living. She had quit her job so that she could stay at
home to care for him.
Recent VA medical records also include treatment for the
veteranís difficulty eating and swallowing, with dysphagia,
indigestion, heart burn, and esophageal stricture. Records
also note the veteranís history of smoking (with a 60+ pack-
years) and history of alcohol and drug abuse.
Noted PTSD symptoms in recent VA psychiatric outpatient
treatment records include self-isolation, increased
irritability, depression, restricted emotions, loss of
interest in activities, impaired sleep and frequent
nightmares, heavy use of drugs and alcohol, very poor
concentration, and attempting to stay busy to avoid intrusive
memories of war.
Remand Analysis
The appellant contends, in essence, that he requires the
regular assistance of another person for most of his
activities of daily living and is substantially confined to
his dwelling due to his service-connected disabilities.
Special monthly compensation is payable to individuals who
are so helpless as a result of service-connected disability
that they are in need of the regular aid and attendance of
another person. 38 U.S.C.A. ß 1114(l) (West 1991 & Supp.
1998); 38 C.F.R. ß 3.350(b)(3) (1997). Such an individual
will be considered in need of aid and attendance if he or she
is a patient in a nursing home because of mental or physical
incapacity or if he or she establishes a factual need for aid
and attendance under the criteria set forth in 38 C.F.R. ß
3.352(a). 38 C.F.R. ß 3.151(c)(2)-(3) (1997). The following
will be accorded consideration in determining the need for
regular aid and attendance: Inability of a claimant to dress
or undress himself /herself, or to keep himself /herself
ordinarily clean and presentable; frequent need of adjustment
of any special prosthetic or orthopedic appliances which by
reason of the particular disability cannot be done without
aid (this will not include the adjustments of appliances
which normal persons would be unable to adjust without aid,
such as supports, belts, lacing at the back, etc.); inability
of a claimant to feed himself/herself through loss of
coordination of upper extremities or through extreme
weakness; inability to attend to the wants of nature; or
incapacity, either physical or mental, which requires care or
assistance on a regular basis to protect the claimant from
hazards or dangers incident to his or her daily environment.
A finding that the veteran is "bedridden" will provide a
proper basis for the determination. Bedridden will be that
condition which, through its essential character, actually
requires that the veteran remain in bed. The fact that a
veteran has voluntarily taken to bed or that a physician has
prescribed rest in bed for the greater or lesser part of the
day to promote convalescence or cure will not suffice. It is
not required that all of the disabling conditions enumerated
in this paragraph be found to exist before a favorable rating
may be made. The particular personal functions which the
veteran is unable to perform should be considered in
connection with his or her condition as a whole. It is only
necessary that the evidence establish that the veteran is so
helpless as to need regular aid and attendance, not that
there be a constant need. Determinations that a veteran is so
helpless as to be in need of regular aid and attendance will
not be based solely upon an opinion that the claimant's
condition is such as would require him or her to be in bed.
They must be based on the actual requirement of personal
assistance from others. 38 C.F.R. ß 3.352(a).
In addition, entitlement to housebound benefits is based on a
showing that the claimant is substantially confined to his or
her dwelling or immediate premises by reason of disability or
disabilities which it is reasonably certain will remain
throughout the claimant's lifetime. 38 C.F.R. ß 3.351(e)
(1997).
In this case, at the veteranís April 1996 VA aid and
attendance/housebound status assessment examination, the
examiner noted that the veteran might harm himself if left
unattended. It is unclear from that examination report
whether the veteran would constitute a danger to himself so
as to require the aid and attendance of his wife solely
because of his service-connected disabilities. The examiner
also found that the veteran was incapable of performing
activities of daily living by himself and was substantially
housebound due to both service-connected and nonservice-
connected disabilities, but did not determine whether the
veteran would be so incapacitated solely due to his service-
connected disabilities.
The omission of a medical opinion specifically requested by
VA indicates a neglect of the duty to assist, and requires
remand. Smith v. Brown, 5 Vet.App. 335, 340 (1993).
Submission of a well-grounded claim creates a duty on the VA
to verify or discount the evidence presented; the Board may
not simply reject medical opinions presented, though they may
be equivocal, by using its own judgment. A duty is thus
created, even with such equivocal medical evidence, to seek
clarifying medical evidence. Obert v. Brown, 5 Vet. App. 30,
33 (1993). A remand is therefore in order for VA
examinations by a board of two psychiatrists, to determine
whether the veteranís service-connected disabilities,
including his PTSD, have resulted in incapacities that
require the care and assistance of another, including to
protect him from hazards and dangers incident to the daily
environment, or to protect him from himself. They should
also determine whether service-connected disabilities are
reasonably certain to persist for the veteranís lifetime, and
if so, whether those reasonably permanent service-connected
disabilities, by themselves, cause him to be substantially
confined to his dwelling.
The veteran at his August 1996 VA psychiatric examination for
compensation purposes alleged that he had attempted suicide
in 1978 and again in 1988. However, there is no independent
medical or other evidence within the claims file to
corroborate those allegations. Evidence of prior suicide
attempts may be informative of the veteranís capacity for
self-harm and hence his need for regular aid and attendance.
Therefore, an attempt should be made to obtain any inpatient
or outpatient treatment records, including from service
separation, which may confirm those suicide attempts.
Prior to the Boardís review of the veteranís SMC claim, any
implied claims for service connection for additional
disabilities must necessarily be developed by the RO. In
particular, the Board directs the ROís attention to the
veteranís report, in a February 1997 outpatient treatment
record, of a right foot injury in service with chronic
tenderness thereafter, and the examinerís finding, in effect,
of a limp due to that injury, and the examinerís assessment
of degenerative lumbar disease secondary to that foot injury.
Even if evidence sufficient to support a claim for a right
foot injury on a direct basis cannot be obtained, service
connection should also be considered on a secondary basis,
including based on secondary aggravation, pursuant to
Allen v. Brown, 7 Vet.App. 439, 448 (1995). The Board finds
that the February 1997 medical record constitutes an implied
claim for service connection for a right foot injury, and for
degenerative lumbar disease secondary to that right foot
injury. The Board directs those claims to the RO for
appropriate action. Those claims for service connection for
a right foot injury and for degenerative disease of the
lumbar spine are inextricably intertwined with the veteranís
claim for special monthly compensation based on the need for
regular aid and attendance or housebound status. The Court
has stated that issues which are inextricably intertwined, as
in this case, must be resolved together, because the Court
will not review Board decisions in a piecemeal fashion.
Harris v. Derwinski, 2 Vet.App. 180 (1991).
In view of the foregoing, and given the duty to assist the
veteran in the development of his claim under 38 U.S.C.A.
ß 5107 (West 1991), this claim is REMANDED to the RO for the
following development:
1. The RO should appropriately contact
the appellant and request that he
identify all sources of medical treatment
received for injuries sustained in his
suicide attempts in 1978 and 1988, and
all sources of psychiatric counseling
following those attempts, and that he
furnish signed authorizations for release
to the VA of private medical records in
connection with each non-VA medical
source he identifies. Copies of the
medical records from all sources he
identifies, and not currently of record,
should then be requested and associated
with the claims file.
He should also be asked to identify all
sources of medical treatment received for
his right foot injury, and to provide any
other evidence of incurrence of that
right foot injury in service or of
incurrence or aggravation of that injury
secondary to service-connected
disabilities. He should be asked to
furnish copies of any private medical
records. Any VA or service records
identified, and not currently of record,
should be obtained. Any evidence
furnished or obtained should be
associated with the claims file.
2. Thereafter, the RO should afford the
veteran an opportunity to develop, and
should thereafter adjudicate, the
veteran's claims of entitlement to
service connection for a right foot
injury, and entitlement to service
connection for degenerative lumbar
disease secondary to a right foot injury.
He should be properly notified thereof.
3. Thereafter, the veteran should be
afforded VA examinations by a board of
two psychiatrists. The psychiatrists
should be asked to review the veteranís
records, including records of medical
examinations, treatments, and
hospitalizations, and to ascertain
whether it is as likely as not that the
veteran is in need of the regular aid
and attendance of another for activities
of daily living, including to protect
him from the hazards and dangers
incident to daily life, and to protect
him from potential self harm, either by
accident or purposeful act, solely due
to his service-connected disabilities,
including his PTSD. The examiners
should also ascertain whether it is as
likely as not that the veteran is
substantially confined to his dwelling
solely by reason of service-connected
disabilities which it is reasonably
certain will persist for the remainder
of the veteranís life. In making these
determinations, the examiners should be
considering whether the veteran would be
in need of regular aid and attendance
due to his service-connected
disabilities, or whether he would be
housebound due to his reasonably
permanent service-connected disabilities
if, with the exception of his service-
connected disabilities, he were in all
other respects in a state of perfect
physical and mental health. The claims
file and a copy of this remand should be
made available to the examiners for
review in connection with the
examinations. A list of the veteranís
current service-connected disabilities
should be provided to the examiners.
The examiners are requested to pay
particular attention to the medical
evidence presented in the claims file,
and to address that evidence, including
the medical evidence detailed in the
body of this remand, above. The
examiners should also note the above-
listed regulatory criteria for special
monthly compensation based on the need
for regular aid and attendance, and the
criteria for special monthly
compensation based on being housebound.
4. After all of the above, the RO should
readjudicate the veteranís claim of
entitlement to special monthly
compensation based on being housebound or
based on the need for regular aid and
attendance of another due only to his
service-connected disabilities. If the
determinations remain to any extent
adverse to the veteran, he and his
representative should be provided a
supplemental statement of the case which
includes a summary of additional evidence
submitted, applicable laws and
regulations, and the reasons for the
decisions. They should be afforded the
applicable time to respond.
The case should be returned to the Board for further
appellate review, if in order. The Board intimates no
opinion, either factual or legal, as to the ultimate
conclusion warranted in this case.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veteransí Appeals or by the United States Court of
Veterans Appeals for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veteransí Benefits Improvements Act of 1994, Pub. L.
No. 103-446, ß 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
ß 5101 (West Supp. 1998) (Historical and Statutory Notes).
In addition, VBAís ADJUDICATION PROCEDURE MANUAL, M21-1, Part
IV, directs the ROs to provide expeditious handling of all
cases that have been remanded by the Board and the Court.
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
BARBARA B. COPELAND
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. ß 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. ß 20.1100(b)
(1997).
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